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New Zealand: Acts affecting Native Lands, 1886, 1888-91 and 1894-95

Part V. — Special PRovisions Affecting Various Matters as to Which Jurisdiction is Conferred by this Act

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Part V.
Special PRovisions Affecting Various Matters as to Which Jurisdiction is Conferred by this Act.

(1.) Partition.

41.Partition order to claimant deemed to be confirmed. An alienation of land other than Native land completed by partition order shall be deemed to have been confirmed, in so far as the same is not contrary to the provisions of any law in force at the date of such alienation.
42.Date of deed for stamp duty. The date of the making of a partition order in favour of any claimant shall, for the purposes of assessing all stamp duties and fines, be deemed to be the date of the first execution of any deed relied on by such claimant as giving title, unless the Court shall in such partition order otherwise direct; but no partition order in favour of a claimant shall be forwarded to the District Land Registrar until the Chief Judge shall be satisfied that all stamp duties payable on the alienation thereby completed have been paid. But nothing in this section shall impose any duty on any Native, or on an alienation from a Native to a Native.
43.Trusts for Native under dieability to continue. Every trustee for a Native under disability of an interest in land partitioned shall, unless the Court shall otherwise order, continue to be trustee for such Native of any parcel of land of which such Native may become owner on partition.
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(2.) Exchange.

44.Conditions of exchange. No exchange shall be ordered unless the Court shall be satisfied that, upon the same being effected, each of the parties thereto shall have sufficient land for his support, and that any money agreed to be paid to make equality of exchange has been paid.
45.Effects of exchange order. Orders effecting an exchange shall vest in each of the parties the estate, share, or interest theretofore held or owned by the other of them in the lands intended to be exchanged, and shall specify the amount of money (if any) paid to make equality of exchange, and shall be liable to ordinary deed stamp duty on such amount only, and may be registered without a confirmation order.

(3.) Succession, Probate, and Administration.

46.Devise of land subject to successor's right. On every application for the appointment of a successor where the deceased has left a will, and on every application for probate or letters of administration with will annexed, the Court shall inquire if the testator has devised land to a person other than his successor; and, if the testator has so devised land, the Court, if it shall further appear on inquiry that such successor has not, without the land so devised, sufficient land for his support, shall award to such successor a part, or, if necessary for his support, but not otherwise, the whole of the land so devised; aud the probate or letters of administration shall be expressly limited to the estate and effects of the deceased other than the land so awarded to the successor.
47.Infant Native incapable of making will. An infant Native shall not be competent to make a will.
48.Devise sufficient without succession orders. Excepting as in section forty-six is provided, or where the Court for some special reason may consider it expedient by succession order to give effect to what it considers to be the real intention of any testator, or to effect a division or distribution amongst several devisees, no succession order shall issue in respect of any land devised.
49.Title under succession orders. Upon the title under any succession order becoming ascertained, the interest of the deceased Native in the land or personal property comprised therein shall be deemed to have vested in the successor as trom the date of the death of such deceased Native, but subject to the title of the executor under the will, or administrator of the estate of the deceased Native.
50.Public Trustec to be trustee for minor successors in certain cases. The Court shall appoint the Public Trustee to be the trastee under "The Maori Real Estate Management Act, 1888," of the interest of any owner or successor hereafter determined who shall be a minor, excepting in cases where it shall appear to the Court that the appointment of some person or persons other than the Publie Trustee would be advisable in the interests of such minor.
51.
Exclusive jurisdiction in probate and administration, and discretion in granting same. The Court shall have exclusive jurisdiction to grant probate of the wills and letters of administration of the estate and effects of deceased Natives, and may grant letters of administration to any fit person, who need not necessarily be the next of kin of the deceased, and may grant letters of administration, with or without a will annexed, to any fit person, notwithstanding any application for probate by the executor.
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The word "Native" in this section shall not include the children of half-castes by Europeans, or of Europeans by half-castes, or their descendants respectively, nor shall this section apply to any will exclusively dealing with or disposing of any land acquired from the Crown or from Europeans by purchase or devise.

(4.) Restrictions on Alienation.

52.
Restrictions, how removed. Any land heretofore or hereafter to be rendered inalienable may be rendered alienable, subject to the provisions of this Act; and any restriction on the alienation of any land heretofore or hereafter to be imposed, or recommended to be imposed, may be removed or varied, either absolutely or in respect of any particular alienation, by the Court, as to the whole of such land or as to any part or parcel thereof, or as to any estate, share, or interest therein respectively, with the assent of the owner, or of one-third in number at least of the owners, of such land, part, parcel, estate, share, or interest, and on proof that every such owner has sufficient land left for his support:

Provided that restrictions on alienation existing prior to the thirtieth day of August, one thousand eight hundred and eighty-eight, may be removed or varied only by the Grovernor, on the recommendation of the Court and in accordance therewith.

(5.) Confirmation of Alienations.

53.Court to be satisfied that alienation valid. Subject as hereinafter mentioned, the Court may confirm any alienation of land upon being satisfied,—
(1.)That the same is not—
(a.)A dealing prohibited by any law for the time being in force;
(b.)Contrary to equity and good conscience;
(c.)A breach, or in contravention, of any trust to which the land is subject;
(d.)In contravention of any restriction on the alienation of such land;
(e.)Made in consideration wholly or partly, directly or indirectly, of the supply, or promise of supply, of any intoxicating liquor, or weapons or munitions of war;
(f.)That such land is not the subject of a notice under the provisions of "The Native Land Purchases Act, 1892," or "The Land Purchase and Acquisition Act, 1893":
(2.)
(a.)That the title thereto is ascertained;
(b.)That the consideration has been paid or given;
(c.)That, apart from the land affected by such alienation, each Native alienating, other than a half-caste, has sufficient land left for his support, and that each halfcaste alienating has sufficient means of support derivable from land or otherwise;
(d.)

That, before the deed evidencing or effecting such alienation was signed by each Native alienating, it had indorsed thereon a plan of the land affected thereby, and a statement in the Maori language, certified by a page 15licensed interpreter as correctly setting forth the effect of such deed; and

The effect of such deed was explained by a licensed interpreter to each Native before signing the same;
(e.)That the signature of each Native to such deed is attested by the Commissioner of Crown Lands or the Native Lands Administration Officer, or a Justice of the Peace, Postmaster, or a solicitor of the Supreme Court not concerned in the transaction, and the licensed interpreter who interpreted the effect of such deed to the Native alienating.
54.Any Judge may confirm any alienation, although the requirements of subsections two (d) or two (e) of section fifty-three have not been complied with,—
(1.)If he shall be satisfied that such non-compliance has not prejudiced any Native alienating;
(2.)Court may dispense with formal execution. If a Justice of the Peace, or solicitor of the Supreme Court not concerned in the transaction, attesting the signature of any Native to such deed, shall certify that such Native has a knowledge of the English language sufficient to enable him to understand, and that he does understand, the effect of the transaction.
55.Confirmation necessary to registration. No deed effecting an alienation shall be registered until a confirmation order shall have been indorsed thereon: Provided always that a certificate by a Judge attesting the execution of a deed by a Native, that he has satisfied himself that the alienation thereby effected is in accordance with law, shall have the same effect as a confirmation order.
56.Confirmation of deeds heretofore executed. A confirmation order may be granted in respect of any deed executed before the passing of this Act, on proof that such deed was executed, and that the alienation thereby effected was in accordance with the law at the time of such execution.
57.Efiect of indorsement by Trust Commissioner on instrument. Every instrument indorsed by a Trust Commissioner as approved in terms of "The Native Land Frauds Prevention Act, 1881," or any Act amending the same, shall be deemed to have been confirmed by the Court within the meaning of this Act, and no further confirmation shall in such case be required.

(6.) Native Trusts.

58.Beneficiaries under Native trusts to take subject to lease, mortgage, or contract. Where the Court shall determine under subsection ten of section fourteen of this Act that any land is held in trust, the beneficial owners of such land shall hold the same subject to any existing lease or mortgage or contract for the sale of such land.

(7.) Apportionment.

59.Unless otherwise provided in the lease or in some agreement Native lessors entitled in equal shares until relative interests determined. signed by the lessors, of which notice shall have been given to the lessee, Native lessors shall be deemed to be entitled in equal shares to rent accruing to them until their relative interests be determined, or the leased land be partitioned: Provided that if Rents may be paid to Public Trustee. there be any dispute between the Native lessors, or any of them, as to the division of any rent, any one of them may apply ex parte page 16to a Judge to order that the same be paid to the Public Trustee; and such Judge may make such order as may seem just, and payment of such rent in accordance with such order shall be deemed a payment made under the lease.
60.Public Trustee may pay on order. The Court may at any time, on application, rescind, vary, or amend any such order; and, from time to time, direct the Public Trustee how he shall dispose of any rent paid to him under any such order as aforesaid.

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